Westerfield's Fate In Jury's Hands

SAN DIEGO -- A prosecutor told jurors earlier Thursday that 7-year-old Danielle van Dam was essentially speaking to them from the grave via blood and other evidence pointing to David Westerfield as her kidnapper and killer.

WESTERFIELD TRIAL Judge William Mudd Issues Death Penalty Sentence Hear Jury's Death Penalty Recommendation Watch The Jury's Verdict Being Read Share Your Thoughts DANIELLE VAN DAM 1994-2002 Watch Danielle Video Montage E-mail: daniellevandam @yahoo.com Send mail to: P.O. Box 501515 San Diego, 92150

Deputy District Attorney Jeff Dusek told the hushed courtroom that in a murder case, the best witness -- the victim -- could not be there.

"We don't have our best witness here to testify," he said. "But if, by chance, someone could cause a miracle, create a miracle, just a little one for a short amount of time, bring her into this courtroom and ask her, 'Danielle, please tell us, who did this to you?' She'd turn, 'I've already told you.'"

"'I've told you with my hair and where you found it. I told you with the orange fiber that you found on my choker and where you found it. I told you with the blue fibers that were on my naked body and where you found them. I told you with my fingerprints, and I told you with my blood. Please listen.'"

With those words, he ended his rebuttal argument, during which a blown-up photo of Danielle was on view on both an overhead projector and propped on a desk.

Video

Attorney Gretchen Von Helms Looks At Both Sides Now It's The Jury's Turn Dusek: 'What Would Danielle Say?' Dusek: 'This Is The Smoking Gun' Feldman: Danielle Knew Her Abductor

The judge then gave the jury final instructions before it began deliberating Westerfield's fate.

Five of the six alternate jurors agreed to wait out deliberations at the San Diego County Courthouse. The sixth agreed to be available within 45 minutes.

Earlier in his rebuttal argument, Dusek took on a defense contention expressed Wednesday that there was no smoking gun.

"This jacket -- this is the smoking gun," Dusek told jurors, referring to a photograph of the jacket displayed on a screen. "Danielle's blood was on that jacket. Give me another explanation for how it got there -- please. You got none. There's no dispute -- no defense evidence it was not Danielle's blood. This is a smoking gun. This is hard evidence."

Dusek displayed for the jury graphics listing all the evidence the prosecution has entered in more than two months of testimony.

"Look at all of that and ask yourself if there's two reasonable interpretations," Dusek said.

Westerfield, 50, is charged with kidnapping and murder in the death of his neighbor, who was reported missing the morning of Feb. 2. He faces the death penalty if convicted on those charges.

Westerfield is also charged with misdemeanor possession of child pornography, which prosecutors say pointed toward a motive for the abduction.

Dusek said there was too much variety in the evidence "for anything other than guilt."

He pointed out the three loads of laundry in Westerfield's house.

"He was cleaning like a dervish," Dusek said.

The prosecutor also asked the jury to consider how trace evidence found by police could get from the laundry to a bed, beneath a comforter and on a pillow, "if she wasn't there, if she wasn't on that bed."

"Fingerprints, hair, blue fibers, dog hair -- and the blood -- all found in the back of the motor home," the prosecutor continued. "There's no reasonable explanation but guilt. None."

Jurors appeared to pay close attention to Dusek while he spoke. Defense counsel Steven Feldman frequently scanned the panel looking for reactions.

In beginning his rebuttal argument Wednesday, Dusek (pictured, left) accused defense attorney Steven Feldman of "falsehoods, misrepresentation and distortions" in his five hours of closing arguments.

Feldman told jurors it was "impossible" for his client to have dumped Danielle's body beside an East County road, where it was discovered Feb. 27.

The defense claimed throughout the trial that Westerfield was under tight surveillance by police and the media beginning Feb. 5, three days after the Sabre Springs second-grader was discovered missing.

Feldman told the jury that every expert who testified said the girl's body could not have been placed beside the road until well after Feb. 5.

Prosecutors contend the defense did not accurately represent the information provided by experts who study insect infestation of corpses.

Brenda van Dam discovered her daughter missing from her bed the morning of Feb. 2. Police immediately focused on Westerfield, and the design engineer was arrested Feb. 22.

As Feldman wrapped up his argument Wednesday, he listed what he said were areas of doubt about the case, beginning with motive.

"Spare me the speculation on pornography," Feldman said. "Don't get sidetracked into their speculation. They don't have motive. They're struggling. They're grasping at straws. They're desperate."

Feldman also discussed the issue of access -- suggesting that Westerfield could not have maneuvered his way through the darkened van Dam home the night of Feb. 1 without anyone hearing.

Feldman also pointed out that three unidentified fingerprints were found in the house, along with an unidentified hair under Danielle's body.

The attorney sought to raise doubts about state evidence -- including one of the victim's fingerprints and signs of her DNA -- that the prosecution says indicates she may have been killed in Westerfield's motor home.

"They think they got him because they found the fingerprint and they got some DNA in the motor home," Feldman (pictured, left) said. "It's there. I'm not going to come in here and tell you it's not. It's there.

"I'm going to say this to you, the same way I said it to them. Wait a minute. Where's the smoking gun? Can you tell me when it got there? No. Can you tell me how it got there? No. Can you tell me how long it's been there? No."

The attorney argued that Danielle could have sneaked into Westerfield's motor home to play when it was parked on the street and left behind hair and fingerprints and perhaps blood from a cut or scrape.

Radio Producer Kicked Out Of Courtroom

The judge in the David Westerfield trial kicked a producer from the Rick Roberts Show out of the courtroom Thursday, after she failed to explain how the program aired information from a closed hearing.

"Goodbye," an irate Superior Court Judge William Mudd snapped at River Stillwood (pictured, rigfht) . "I will not tolerate this."

Before jurors were called in for the completion of closing arguments, Mudd announced that "there was a major breach of my agreement with all of you folks yesterday. Major to the point where somebody's going to answer questions today or be excluded from this courtroom."

Mudd said the court held a closed session "to discuss a security matter that was of grave concern to the court and the parties. "

"This courtroom was closed," Mudd said. "No member of the public or press was here. The television had been turned off. The cameras were not in focus. Within 45 minutes of that hearing, on the radio, live, a complete description of what happened including my reaction was broadcast.

"So my question, Ms. Stillwood, is, will you voluntarily tell me the source of your information?"

" ... I do not know the source," Stillwood replied, explaining that she was driving to the Kearny Mesa studios of KFMB radio at the time.

Mudd then dismissed Stillwood.